The U.S. Court of Appeals for the District of Columbia Circuit has ruled that Special Counsel Jack Smith cannot access most of Pennsylvania Republican Rep. Scott Perry’s cell phone records as part of his investigation into the Jan. 6 riot at the U.S. Capitol. The court determined that doing so would violate Perry’s immunity under the “speech and debate” clause of the Constitution, which protects legislators while they are performing their official duties from legal action by the Executive Branch representatives or other employees.
This clause was established to protect Congress members when performing their legislative duties, such as voting on bills or speaking in debates, without fear of retribution or investigation by outside sources. This allows lawmakers to engage in unfettered discussion regarding policy matters without fear of being held personally liable for any actions taken during those conversations or debates.
The court ruled that Smith did not have a valid reason to access Perry’s cell phone records because it would infringe upon this constitutional immunity and thus should not be granted access unless he can provide further evidence indicating why he needs to view them specifically related to his investigation into the Jan 6th riot incident at the Capitol building.. The ruling is expected to set a precedent for future cases where special counsels attempt to gain access to congressional records in order to investigate possible criminal activities involving elected officials.
“While elections are political events, a member’s deliberation about whether to certify a presidential election or how to assess information relevant to legislation about federal election procedures are textbook legislative acts,” U.S. District Judge Neomi Rao wrote in the opinion issued last week.
“A three-judge panel of the D.C. Circuit Court of Appeals concluded that prosecutors’ effort to access the cellphone communications of Rep. Scott Perry (R-Pa.) with colleagues and executive branch officials violated his immunity under the Constitution’s Speech or Debate clause, which shields members of Congress from legal proceedings connected to their official duties,” Politico reported.
“We disagree with the district court’s holding that informal factfinding is never a legislative act. But we also reject Representative Perry’s proposition that informal factfinding is always a legislative act,” Rao wrote, according to POLITICO.
The higher court returned the case to Howell for her to apply the new rules to her original decision, the outlets reported.
“The decision breaks new ground in a decadeslong tug-of-war between Congress and the executive branch. For the first time, an appeals court has held that lawmakers’ cell phones are subject to the same protections as their physical offices. And it is the first significant legal setback for Smith in his bid to obtain evidence about involvement by allies of then-President Donald Trump in his effort to subvert the 2020 election,” the outlet noted.
Politico added: “It’s unclear whether Smith will appeal the decision to the full bench of the D.C. Circuit or to the Supreme Court. His office declined to comment, as it did last week when the court released an order broadly outlining the outcome of the fight.”
Earlier this week, House Judiciary Committee Chairman Jim Jordan fired off a letter to Smith requesting documents and materials after being accused of using illicit pressure tactics in his investigation and indictments of former President Donald Trump.
The Ohio Republican demanded materials relating to claims that one of Smith’s senior prosecutors “allegedly improperly pressured Stanley Woodward, a lawyer representing a defendant indicted by you.”
The charges of impropriety come from a meeting between Jay Bratt and Woodward, the latter of whom represents Trump aide Walt Nauta in the Mar-a-Lago classified documents case. Bratt allegedly pressured Woodward “by implying that the Administration would look more favorably on Mr. Woodward’s candidacy for a judgeship if Mr. Woodward’s client cooperated with the Office of the Special Counsel,” the letter said, according to The Western Journal.
Jordan set a Sept. 21 deadline for Smith to comply with the chairman’s request.
“In November 2022, when your prosecutors were trying to secure the cooperation of Walt Nauta—who is alleged to have ‘move[d] boxes of documents’ at Mar-a-Lago—prosecutors, including Mr. Bratt, summoned Mr. Woodward to a meeting at the Department’s headquarters for ‘an urgent matter that they were reluctant to discuss over the phone,’” Jordan said in the letter, which was obtained by Just the News.
“When Mr. Woodward arrived, Mr. Bratt threatened him that Mr. Nauta should cooperate ‘because he had given potentially conflicting testimony that could result in a false statement.’ Mr. Bratt commented that he did not take Mr. Woodward as a ‘Trump guy’ and indicated that he was confident that Mr. Woodward ‘would do the right thing,’” the letter continued.
